MICHAEL E. KIRBY, Judge.
This appeal concerns a resentencing only.
Lawrence Howard was found guilty of possession with the intent to distribute cocaine, in violation of La. R.S. 40:967, after a bench trial on January 29, 1998. The State filed a multiple bill of information on March 20, 1998, and the defendant pled not guilty to the multiple bill. At sentencing on October 6, 1999, the trial court sentenced the defendant to serve fifteen years at hard labor.
On appeal, the defendant alleged that he had not been adjudicated a multiple offender on October 6, 1999, even though he was allegedly sentenced under the multiple offender statute. This court ordered the trial court to submit the transcript of the multiple bill adjudication. On September 13, 2001, the trial court conducted a multiple bill hearing. The defendant was adjudicated a second felony offender and sentenced to seventeen years at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, this court affirmed the defendant's conviction; however, his adjudication and sentence under the multiple bill were reversed, and the case was remanded.
On May 10, 2002, at the multiple bill hearing, the defendant was found to be a second offender and was sentenced to serve eighteen and one-half years at hard labor without benefit of probation or suspension of sentence.
The facts of the case as presented in the earlier appeal are as follows:
State v. Howard, 805 So.2d at 1251-1253.
The defendant, through counsel, now makes two assignments of error regarding his sentence: (1) the trial court erred in increasing an excessive sentence without any stated reason, and (2) the defendant is entitled to immediate discharge for the court's delay in imposing a final sentence.
As part of the first assignment, the defendant maintains that an error patent occurred in that he was sentenced for his entire term without benefit of parole, probation or suspension of sentence. However, the transcript of sentencing on May 10, 2002, indicates that his eighteen and one-half year term was imposed without probation or suspension of sentence as mandated by La. R.S. 15:529.1(G). The defendant's parole eligibility was not considered although under La. R.S. 40:967(B)(4)(b) a sentence must be imposed without benefit of parole, probation, or suspension of sentence for five years. Thus, the sentence appears to be illegally lenient because parole was not restricted.
However, paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. Moreover, in State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the Supreme Court has ruled that paragraph A self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the trial court's failure to specify that the defendant's sentence be served without benefit of parole for five years. The correction is statutorily effected. La. R.S. 15:301.1(A).
We find merit in the first assignment of error that the trial court erred in increasing an excessive sentence without any stated reason. As the defendant points out the defendant was sentenced
In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the court held that the Due Process Clause of the Fourteenth Amendment prevented an increased sentence following a retrial if the increase in the sentence was motivated by vindictiveness against the defendant, because the fear of such retaliation would have a chilling effect on the defendant's exercise of his appeal rights. The court held that, when a judge imposes a more severe sentence upon a defendant after a new trial, the reasons must affirmatively appear in the record and must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. The court in Pearce found that this need for objective information arises because, without it, there is a presumption that the greater sentence is imposed for a vindictive purpose.
The Louisiana Supreme Court followed Pearce in State v. Rutledge, 259 La. 543, 250 So.2d 734 (1971), in which a defendant's guilty plea and sentence of one year imprisonment were vacated and defendant was subsequently tried before a jury, convicted, and sentenced to two and one-half years imprisonment. Because the reasons for the increase in the sentence did not appear in the record, the court found that the second sentence was constitutionally objectionable under Pearce. See also State v. Allen, 446 So.2d 1200, 1202-1203 (La.1984).
In Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the defendant entered guilty pleas to charges of burglary and rape in exchange for the dismissal of a sodomy charge. The defendant later successfully had his guilty pleas vacated by an appellate court. He then proceeded to trial on all three original charges, was convicted on each, and received greater sentences than those imposed after his guilty pleas. The trial court stated that the greater sentences were being imposed because of evidence presented at trial of which the court was unaware at the time of the defendant's first sentencing. The United States Supreme Court found that, when a greater sentence is imposed after a trial than was imposed after a guilty plea, the presumption of vindictiveness present in Pearce does not exist because the trial court is generally privy to less relevant sentencing information after a plea than after a trial, such as the full nature and extent of the crimes and the defendant's conduct during the trial itself, and because the factors for leniency attendant to a guilty plea are no longer present after a trial. Alabama v. Smith, 490 U.S. at 801, 109 S.Ct. at 2205-06.
None of the considerations present in Alabama v. Smith is present in this case. The defendant did not enter a guilty plea to the original charge. He never admitted to his status as a second offender, and the transcript of sentencing indicates no bargain for a particular sentence.
In the instant case, the trial court gave no reasons for the increased sentence of eighteen and one-half years. The defendant faced a range of fifteen to sixty years, and his increased sentence was a twenty-three
The defendant's argument that his sentence is excessive is moot.
The second argument, that the delay in imposition of sentence entitles the defendant to immediate discharge, was considered in his first appeal where this court found the error without merit because he was not prejudiced by the delay. Under La.C.Cr.P. art. 874 excessive sentencing delays deprive the court of jurisdiction to sentence a defendant.
The delays in sentencing occurred solely through the acts and omissions of the trial court. The record is devoid of any factors or circumstances that would justify any delay. However, relief would be available to Howard only if the evidence shows that he was prejudiced by the delay in sentencing. State v. Stewart, 98-1215, p. 5 (La. App. 4 Cir. 3/10/99), 732 So.2d 74, 76. Howard faced a minimum sentence of fifteen to sixty years at hard labor for distribution of cocaine in violation of La. R.S. 40:967 and La. R.S. 15:529.1(A)(1)(a). Because the defendant knew his ultimate sentence would be under the Habitual Offender Bill, he could not have expected a less severe sentence upon re-sentencing as a habitual felony offender and he was not prejudiced by the delays. This assignment is without merit.
Accordingly, for the reasons cited above, the defendant's multiple offender adjudication is affirmed, his sentence is vacated, and the case is remanded for resentencing.